Muth v. Urricelqui

• Decision Date: 21 June 1967
• Citation: 60 Cal.Rptr. 166,251 Cal.App.2d 901
• Court: California Court of Appeals Court of Appeals
• Parties: A. Bernard MUTH, Leland E. Muth and Albert R. Muth, Plaintiffs and Respondents, v. A. URRICELQUI, Defendant and Appellant. Civ. 23336.

Page 166

60 Cal.Rptr. 166

251 Cal.App.2d 901

A. Bernard MUTH, Leland E. Muth and Albert R. Muth, Plaintiffs and Respondents, v. A. URRICELQUI, Defendant and Appellant.

Civ. 23336.

Court of Appeal, First District, Division 3, California.

June 21, 1967.

George F. Jansen, San Francisco, for appellant.

Cushing, Cullinan, Hancock & Rother, San Francisco, for respondents.

HAROLD C. BROWN, Associate Justice.

Appellant A. Urricelqui, an excavation and grading contractor, appeals from a judgment entered against him on a verdict in an indemnity action filed by A. Bernard Muth, Leland E. Muth and Albert R. Muth (hereinafter referred to as Muths), general building contractors.

In a prior action Richard and Mary Hackler were awarded judgment against Muths, the general contractors, for damages caused to their (Hacklers') house by reason of landslide and subsidence. Muths in the present action seek to be indemnified, claiming that the subcontractors performed their work in a negligent manner, proximately causing Hacklers' damages. Muths named as defendants in their complaint three of their subcontractors, i.e., (1) Hersey Inspection Bureau, (2) Riffe, Shipherd & Jones, and (3) Urricelqui. Hersey Inspection Bureau did not appear in the action. ¹ The jury rendered a verdict against appellant Urricelqui only in an amount sufficient to indemnify Muths for the award against them in the Hackler v. Muth action.

Urricelqui (hereinafter referred to as appellant) contends (1) Muths' active participation in the conduct or omission which caused the loss precludes recovery in indemnity, and (2) the trial court erred in the instructions given to the jury and in failing to give certain instructions offered by appellant.

The parties are in essential agreement as to the facts.

Muths, licensed building contractors, in 1955 commenced construction of a residential subdivision on a tract of land they owned in Orinda, California. They engaged various subcontractors, including Hersey Inspection Bureau, as soil engineers (hereinafter referred to as Hersey); Riffe, Shipherd & Jones, as civil engineers (hereinafter referred to as Riffe) and appellant, as the grading contractor. Hersey was engaged to make a soils investigation of the natural ground, to issue a preliminary soils report, to make recommendations regarding the natural ground and the slope of the excavated or fill banks, to make tests of the compaction of fill, and to issue reports of the fill compaction tests. As soil engineering specialists, Hersey had charge of the fill area from the inception of the subdivision project. Riffe's duties were to prepare tentative subdivision plans, finished construction plans, and the grading plans for the subdivision.

Muths engaged appellant, a licensed grading contractor, for the fill and grading work. Appellant and Muths entered into a written contract whereby appellant agreed to perform '(I)n a good and workmanlike manner, under the direction of the Owner, ² or his authorized representative, all of the work and improvements set forth below and such work shall be done in accordance with 'Construction Plans' and 'Development Plan' of Tract 2245, Warford Mesa, Unit I, prepared by NORMAN T. RIFFE, CIVIL ENGINEER, a partnership, hereby made a part of this contract, and to the specifications and requirements of the County of Contra Costa. * * * The price paid per cubic yard for earthwork shall include all work necessary to clear the area of debris and trees and grass, excavate, and grade lot and street areas in accordance with F.H.A. Minimum Property Requirements and County requirements to the lines and grades shown on the Construction Plans and Development Plans, * * *. The party of the First Part shall hold harmless Albert R. Muth and Sons, the party of the Second Part, for any Public Liability or Property Damage, * * * which may be incurred during completion of this contract.'

After the lot involved in this litigation was graded and filled, Muths constructed a house upon the lot, built a driveway and did the finish grading and sloping of the top of the lot so that the surface water would drain to the street. Muths also employed a subcontractor to construct the water and sewer lines.

Respondents sold the completed house and the lot to the Hacklers on June 25, 1956, for a sale price of $20,300. Thereafter substantial damage was caused to the house by reason of the subsiding and sliding of the land. The Hacklers instituted proceedings against Muths and recovered judgment for $22,500 on condition that Hacklers reconvey the lot and house back to Muths. Muths' suit for indemnity and the judgment against appellant followed.

The evidence disclosed that representatives of the Hersey soils engineers were present during the filling operations but, according to good practice, the soils engineers were not required to examine and check every truckload of fill prior to its being used at the fill site. It was also accepted practice for soils engineers (a) to make representative tests to determine both the quality and density of the fill, (b) to check the natural land for organic material, and (c) to recommend a maximum slope of 2 feet horizontal to 1 foot vertical. The soils engineers made the necessary tests and advised appellant to remove all grass and brush from the natural ground before placing of fill and, further, in grading not to exceed a maximum slope of 2 feet horizontal and 1 foot vertical.

The lot purchased by the Hacklers was one of many lots in a large subdivision and was the only one that subsided.

An expert witness, John A. Trantina, made an examination of the Hackler property and of the adjacent land after the slide, including test borings and a soil analysis. He testified that the cause of the slide was the failure of appellant to strip the ground of organic material and to remove vegetation and wood debris from the fill. Mr. Trantina also found that the slope of the land as graded by appellant was 1 1/2 feet to 1 foot, which is steeper than the recommended 2 feet to 1 foot, and that the variation in slope was a contributing factor to the settlement of the land. Muths did not direct or supervise Hersey, Riffe or appellant in any of this work. Appellant admitted that Muths did not instruct him in how to strip, excavate or fill the lots but merely informed appellant of the required end result.

Muths, as the owners of the tract and the general contractors, could not escape liability for the damage to the Hacklers by seeking refuge in the defense that the damages were proximately caused by the negligence of one or more of their subcontractors. In Dow v. Holly Manufacturing Co., 49 Cal.2d 720, 725, 321 P.2d 736, 739, the court said: "It appears, however, that the analogy of MacPherson v. Buick Motor Co. (217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696) is at last being accepted. Several recent decisions have placed building contractors on the same footing as sellers of goods, and have held them to the general standard of reasonable care for the protection of anyone who may foreseeably be endangered by the negligence, even after acceptance of the work.' (Citing Prosser on Torts (2d ed.) p. 517; Knell v. Morris, 39 Cal.2d 450, 247 P.2d 352.) * * * There is no reasonable distinction between the owner's inability to escape liability and that of the contractor. The contractor, equally with the owner of the property, has supervision over the entire building and its construction, including the work performed by a subcontractor, and where he negligently creates a condition, either by himself or through a subcontractor, he is primarily ³ responsible for that condition and the consequences that may follow from it. * * *'

Muths, having been held originally responsible to the Hacklers, sought indemnification from the subcontractors alleging that they were actively negligent and created the dangerous condition which proximately caused the Hacklers' loss.

The judgment in favor of Hacklers against Muths in the original action did not establish Muths' negligence so as to prohibit them from bringing this suit for indemnity. The issue of the kind or character of Muths' negligence was never submitted to the jury either generally or by special interrogatories and a determination of that issue was unnecessary to adjudicate Hacklers' rights. Muths and appellant were not adversaries in the Hackler action. (See Ralke Co., Inc. v. Esquire Bldg. Maintenance Co., Inc., 246 A.C.A. 170, 54 Cal.Rptr. 556; Baldwin Contracting Co. v. Winston Steel Works, Inc., 236 Cal.App.2d 565, 571--572, 46 Cal.Rptr. 421.)

Muths engaged appellant to do the grading and fill work by written contract wherein appellant agreed to hold Muths harmless from public liability or property damage. This agreement was entered into subsequent to appellant commencing work. It is unnecessary to consider the binding effect of the hold-harmless provision as it fails to provide indemnity for the indemnitee's negligence in clear and explicit language. (See Goldman v. Ecco-Phoenix Elec. Corp., 62 Cal.2d 40, 41 Cal.Rptr. 73 396 P.2d 377; Vinnell Co. v. Pacific Elec. Ry. Co., 52 Cal.2d 411, 340 P.2d 604.) Muths do not base their claim for indemnity on the agreement but rely upon the doctrine of implied indemnity.

The right to implied indemnity while relatively recent in the law of California is now well established. (See City & County of S.F. v. Ho Sing, 51 Cal.2d 127, 330 P.2d 802; Prosser on Torts (3rd ed. 1964) p. 480--487; Weyerhaeuser S.S. Co. v. Nacirema Operating Co., 355 U.S. 563, 568, 78 S.Ct. 438, 2 L.Ed.2d 491; S.F. Unified Sch. Dist. v. Cal. Bldg., etc., Co., 162 Cal.App.2d 434, 447, 328 P.2d 785; Cahill Bros., Inc. v. Clementina Co., 208 Cal.App.2d 367, 381--382, 25 Cal.Rptr. 301; Alisal Sanitary Dist. v. Kennedy, 180 Cal.App.2d 69, 4 Cal.Rptr. 379; Herrero v. Atkinson, 227 Cal.App.2d 69, 38 Cal.Rptr. 490, 8 A.L.R.3d 629; Baldwin Contracting Co. v. Winston Steel Works, Inc., supra;...